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The Recovery of Medical Costs for Asbestos Diseases (Scotland) Bill
Campaigners launch updated bill after cynical insurance bosses break promises to victims’ charity
15 January 2016
MSPs are being asked to throw their weight behind a new bill that will make the insurance industry pay back The Scottish NHS for the cost of treating people who have contracted any industrial illness or injury. The bill, being launched by West of Scotland MSP Stuart McMillan, will compel insurers who have had to pay civil compensation for the disease or injury to also meet the NHS costs of their treatment and care.
This updated bill has been launched following a disgraceful breach of trust by insurance bosses who used shabby tactics to derail a previous bill designed to refund the NHS over asbestos victims.
Stuart McMillan had proposed a bill last year that would seek to recover NHS costs for asbestos related conditions. Following the launch of a formal consultation, the Association of British Insurers requested a meeting to discuss if an agreement could be reached without the need for a new law being introduced. In an act of good faith Phyllis Craig MBE, Director of Clydeside Action on Asbestos and Stuart McMillian agreed to meet them. Phyllis explained:
We expected strong resistance from the insurance industry so when they approached us for a meeting we agreed to meet to discuss all possible options. The meeting went ahead with the ABI and we were specifically told that the insurance industry was supportive of the need for funds to be directed back into the Scottish NHS. The ABI actually asked that CAA and Stuart McMillan take the Bill off the Parliamentary table in order that they could present us with an acceptable proposal of funding in order to have an alternative solution to the Bill. We took them at their word and in the spirit of co-operation decided to work with them.
However once we took the Bill of the table the insurers broke their word and told us they were not willing to consider any alternative ways to achieve compensation for The Scottish NHS. We are now left with no option but to continue to support the need for a law to be passed to compel the insurers to meet their responsibilities. It would seem that the apparent interest of the insurers was simply a cynical attempt to derail the legislative process. It really is an underhand and disgraceful way for the insurers to treat our NHS and the men and women suffering terribly from industrial illness.
Jane Capaldi, 62, was diagnosed with mesothelioma in July 2015
When the consultant sat me down and explained that I had an illness caused by asbestos I was absolutely stunned. I couldn’t believe what the doctor was saying and I didn’t actually take in anything that I was told. It took me while to digest the fact that I had a terminal illness. Since then, there have been many nurses and doctors involved in my care and I am extremely grateful for this. Ensuring that there are enough staff and resources in the NHS to help people with an asbestos related disease is essential. I should never have been exposed to asbestos and I strongly believe that those who do expose people to asbestos must pay not only compensation to the victim, but also reimburse the NHS. This is very important to me because we need to ensure that the services and support continue to be in place and improved on for people living with an asbestos related condition.
Stuart McMillan MSP added:
The one positive to come out of the year long delay is that it has given us time to think about the proposal in a wider context. Whilst recouping NHS costs for one group of people with an industrial illness would be a great step forward, we recognise there are significant costs to the NHS from treating other industrial illnesses and injuries. We need to ensure that the cost to the NHS of those who have been left with debilitating injuries through accidents at work along with individuals who have developed health problems as a result of their working environment are also recovered. This updated bill could potentially generate millions for the NHS. It was estimated last year that the cost to the NHS for investigating and treating people with an asbestos related condition was around £20 million. As this bill will cover all industrial injuries and illnesses, the potential gains to the NHS will be far in excess of this
Dr Alistair Dorward, Consultant Respiratory Physician, who has a long-standing interest in asbestos related diseases, stated:
There are very significant costs to the NHS for investigating, diagnosing and treating people who have work related injuries and illnesses. If negligent employers and insurers were liable to repay these costs to the NHS, then there would be the obvious financial gain for the NHS.
Mr Eddie Smith, who has asbestosis, is a member of the Forth Valley support group he commented:
This time last year, Charlie Bridgewater, who was also a member of the Forth Valley support group, was raising awareness of the need for insurers to meet their responsibilities. Charlie had mesothelioma and had nothing but praise for the doctors and nurses, and NHS staff who were caring for him. Although he was extremely ill, he wanted to speak out about the importance of insurers having to repay the NHS for the costs of his care, as it was their responsibility to do so. Charlie sadly died shortly after he gave his last interview and a year has now passed since Stuart McMillan’s first bill to recoup costs was raised. It seems to me that the insurers have delayed the process for long enough. We all need to come together to support the need for a law that would force the insurance industry to pay up
Laura Blane, solicitor advocate, and an expert in asbestos legal cases with Thompsons Solicitors added:
The insurance industry have once again shown their complete lack of concern for people with an asbestos related disease. Whilst the estimated cost of investigating and treating people with an asbestos related condition in Scotland is substantial for the NHS, £20 million is a very small amount for the insurance industry. On a case by case basis, the additional costs to the insurers would have been insignificant. This will no longer be the case when Holyrood legislates for recovery of costs for all industrial illnesses and injuries.
Further information or to arrange an interview please contact Phyllis Craig MBE at Clydeside Action on Asbestos:
firstname.lastname@example.org Telephone: 0141 552 8852
Courts Reform (Scotland) Bill
Phyllis Craig, Chair of CAA, gave evidence on 22 April 2014 to the Justice Committee of the Scottish Parliament regarding CAA’s opposition to some of the proposed reforms contained within the Courts Reform (Scotland) Bill
The proposed Bill seeks, amongst other reforms, to remove all asbestos cases, where the value is deemed to be less than £ 150,000, from the Court of Session (Scotland’s Supreme Court) to Sheriff Courts. Advocate fees (Advocates are solicitors who have experience and skill in a particular area and appear in the highest courts) would not be recoverable under the proposed changes.
This would leave victims with a stark choice: Pay for your own Advocate’s fees or go to court without an experienced Advocate, and face the insurers, who would be able to retain Advocates regardless of the cost.
Given the complexities involved in industrial disease cases and the fundamental issues of the right to life, it is CAA’s contention that our clients must continue to have access to the highest courts i.e. the Supreme Court (Court of Session). We believe that adequate resources and proper legal representation are the best method of ensuring equality at arms.
Evidence to Scottish Parliament Justice Committee 22 April 2014
Courts Reform (Scotland) Bill: Scheduled evidence from:
Phyllis Craig MBE, Senior Welfare Rights Officer & Chair of Clydeside Action on Asbestos;
Sheriff Principal James Taylor;
Kay McCorquodale, Secretary, Review of Expenses and Funding of Civil Litigation in Scotland;
Rt Hon Lord Gill, Lord President of the Court of Session;
Roddy Flinn, Legal Secretary to the Lord President;
Eric McQueen, Chief Executive, Scottish Court Service;
Roseanna Cunningham, Minister for Community Safety and Legal Affairs, Cameron Stewart, Bill Team Leader, Hamish Goodall and Hazel Gibson, Policy Executives, Nicholas Duffy and Alastair Smith, Solicitors, Legal Directorate, Scottish Government.
We are extremely concerned that the insurance industry will continue to throw its considerable resources to defend any and all asbestos related claims as it so powerfully demonstrated during its exhaustive legal battle with the Scottish Government over the introduction of the Damages (Scotland) Act 2011.
The insurance industry acted swiftly to challenge The Damages (Scotland) Act and had asked the courts to consider that their “Human Rights” had been breached. For the widows and widowers of those who have succumbed to fatal asbestos related conditions this was viewed as a sick irony. They wish the insurers would act as quickly to compensate the victims of asbestos.
It was however a clear indication of the industry’s intention to vigorously challenge, and expend any amount of resources, when defending asbestos related claims: Resources which are unavailable to the victims. The courts must ensure equality at arms and we believe this can only be achieved if the pursuer has access to the best and most experienced Counsel.
We remain concerned that the transfer of asbestos related claims to the Sheriff Court will disadvantage the Pursuer unless the fees are recoverable as we have no hesitation in believing that the insurers will instruct Counsel regardless of cost.
we have no hesitation in believing that the insurers will instruct Counsel regardless of cost.
Our courts must be ready to deal with the ever increasing complexity of asbestos litigation; health and safety law, liability, causation, date of knowledge etc. CAA believe this is best achieved by ensuring that the most experienced advocates and judges are available to those involved in asbestos related litigation. We believe this is currently available in the Court of Session and accordingly we believe that all asbestos related claims be dealt with at this level. Click here for an update on the outcome of the Court Reform (Scotland) Bill.
Public Campaign of the Year
CAA has campaigned alongside Thompsons Solicitors for over 25 years to improve the quality of life for sufferers of asbestos related disease. Together, we have been very successful in changing the law in a number of areas. This has led to positive changes for those suffering from asbestos related disease. Those include:
- Damages Scotland Act 1993
- Social Security (Recovery of Benefits) Act 1997
- Rights of Relatives (Damages) (Mesothelioma) Act 2007
- Damages (Asbestos Related Conditions) (Scotland) Act 2009
- Damages (Scotland) Act 2011
Read more about CAA.
In 2008, our tireless campaigning on behalf of those with an asbestos related disease was recognised when CAA was named Public Campaign of the Year in The Herald Scottish Politician of the Year Awards. View the full newspaper article here (.pdf, 640kb).
The Damages (Scotland) Act 2011
CAA welcomes new laws which will end lengthy legal wrangling over damages claims. The Damages (Scotland) Bill, introduced by Bill Butler MSP, improves rights to damages in respect of personal injuries and wrongful death. CAA were present at the Scottish Parliament to see the Bill being passed unanimously by MSP’s from all parties. The Damages (Scotland) Act will overhaul the current system and provide a fair level of compensation in cases of wrongful death without the need for unnecessarily long and distressing court cases. The changes will benefits hundreds of people across Scotland each year.
Annette Smith, Secretary of CAA, said:
“We have backed these proposals from the outset and this act will be of very real benefit to hundreds of people each year.”
Frank Maguire of Thompsons Solicitors, who helped draft the new Act, explained the practical impact the new Act will have on victims and their loved ones:
It sweeps away what has, up till now, been the law’s anachronistic and sexist view of society, based on an outdated stereo-type of the man as the breadwinner and the woman as the housewife. The new legislation also means families will no longer have details of their income and expenditure scruitinised and argued over in court in their darkest hour.
Click here for more information on the Damages (Scotland) Act 2011.
Pleural Plaques Campaign
The pleural plaques campaign followed a decision by the House of Lords in 2007 to remove the right of those who suffer from this condition to pursue a claim for compensation through the civil courts. (To read the House of Lords judgement in full, please click here) As civil justice is devolved to the Scottish Parliament, it was possible to instigate a campaign here to restore the right to pursue compensation. The campaign was co-ordinated by CAA who, having gained the support of healthcare professionals throughout Scotland, campaigned tirelessly to also gain the support of a cross party majority of MSPs, including Mr Stuart McMillan MSP who was instrumental in gaining support for the legislation. (Picture: CAA at Scottish Parliament meeting with Scottish Justice Secretary Kenny MacAskill, Stuart McMillan MSP and Councillor Kenny MacClaren.)
The campaign was widely supported by the leading trade unions, personal injury solicitors and by local Councillors and officials. CAA made a written submission to the Justice Committee. Subsequently, Phyllis Craig – Senior Welfare Rights Officer at CAA, the Secretary of CAA – Harry McCluskey – and Frank Maguire of Thompsons Solicitors, gave oral evidence to the Justice committee, highlighting the devastating effect that a diagnosis of pleural plaque invariably has on an individual. The outcome of the campaign was the introduction of the Damages (Asbestos Related Conditions) (Scotland) Act 2009, for which CAA received the coveted Public Campaign of the Year award at the Scottish Politician of the Year ceremony, hosted by The Herald Newspaper.
CAA remained concerned regarding the pleural plaques situation in England & Wales. A written response was submitted to the UK Ministry of Justice consultation regarding pleural plaques in September 2008. The consultation sought views on the decision of the House of Lords to remove pleural plaque as a compensatable condition. The outcome of this consultation remains highly unsatisfactory, as both the previous Labour Government, and the new Coalition Government, refused to follow Scotland’s example and re-introduce the legal right to pursue civil compensation for pleural plaque in England & Wales.
The UK Government did introduce a time limited scheme in England & Wales. However, this scheme closed to new applications on 1 August 2011. As it stands there is no longer any provision to pay civil compensation to anyone suffering from pleural plaques in England & Wales.
Please note: If you currently reside in England or Wales, but have contracted pleural plaques as a result of being exposed to asbestos while working for a company registered in Scotland, you may be able to pursue a civil claim for compensation in Scotland. Please contact us for further advice.
The Northern Ireland assembly followed the Scottish Parliament and introduced The Damages (Asbestos Related Conditions) Bill NI restoring the right of people in Northern Ireland suffering from pleural plaques to claim compensation from December 14, 2011.
Last updated 15 January 2016